The amended green law is full of red flags

On 27 March 2023, Union Environment Minister Bhupender Yadav introduced the Forest (Conservation) Amendment Bill (2023 Amendment) in the Lok Sabha. The proposed amendments were passed in both Houses of Parliament despite concerns among environmentalists, experts and citizens that the changes could make it easier for authorities to divert reserved forest areas for commercial and public infrastructure purposes. The amended Act came into force on 1 December 2023. 

A group of 13 petitioners including 12 ex-civil servants have filed a petition in the Supreme Court, flagging their concerns around the modifications to the Forest Conservation Act, 1980. One of their primary contentions is that the amendment enables the diversion of forest land for linear projects tied to “national security” and “defence” within a 100-kilometre radius along border areas. In other words, it clears the way for highway projects in ecologically sensitive and bio-diverse areas in India’s frontier states. 

The petition further highlights that the amendment undermines India’s decades-old forest governance regime built around the implementation of the 1980 Act and the broad understanding of the word “forest” that was laid down by the Supreme Court in its landmark decision in T.N. Godavarman v Union of India (1996).  

Another contention of the petition is that the amendment arbitrarily permits several categories of projects and activities in forest land, while exempting them from the purview of the Act. A list of activities for permitted “non-forest purposes” has now been capriciously expanded to include safaris, zoos, and eco-tourism facilities. 

The petition’s contentions are rooted in the evolution of forest conservation law in India. So before we get into the specifics of the changes, let’s look at the patchwork of law and judicial pronouncements governing the forest conservation landscape in India. 

The forest conservation architecture

The idea of “reserved forest” has a long history. It was first introduced by the Indian Forests Act of 1878, which divided forests into three categories—Reserved (completely government-controlled), protected (partly government-controlled) and village (controlled by villages). The 1878 legislation was later updated in 1927. Now, almost a century later, the 1927 Act continues to be the source of a state government’s power to notify, declare, or record forests as reserved or protected. 

In 1952, the Central Government adopted the National Forest Policy. This was the first time that the magic figure of 33 percent entered Indian forest governance—the policy guidance was that one-third of all land should be brought under forest cover. Further, it recommended that in light of special ecological considerations, such as the need to prevent soil erosion in hilly and mountainous districts, about 60 percent of the total land area in these districts must be brought under forest cover. 

To achieve these targets, the Government moved the subject of ‘forest’ from the State List to the Concurrent List in 1976. It also introduced the protection and safeguarding of forests and wildlife as a Directive Principle of State Policy. Additionally, protection and improvement of forests was introduced as a Fundamental Duty. 

These broader policy prescriptions were a precursor to the 1980 Act. The legislation made it necessary to seek prior approval of the Central Government for the de-reservation of forests reserved under the 1927 Act and for the diversion of any forest land for non-forest use. The Act also laid down ameliorative measures to tackle deforestation through compensatory reforestation and afforestation. 

“What is a forest?”

On 7 April 1995, a Malayali landowner from the Nilambur Kovilakam clan filed a writ petition in the Supreme Court to prevent the felling of timber in a part of the Nilgiris. That petition would lead to a sprawling, controversial litigation that would lead to the Court assuming the role of benefactor of forests and wildlife. 

In N. Godavarman Thirumulkpad v Union of India & Others, the Supreme Court laid down a broad definition of the word “forest”. Before Godarvarman, the definition of forest was restricted to mean “reserved forests.” But in an order in December 1996, the Court said “forest” would include: (a) any land recorded as “forest” in government records; and (b) any land that satisfied the dictionary definition of forest. The Oxford Dictionary defines forest as “a large area covered with trees and undergrowth.” 

It was a victory for the environmentalists, but many observers felt that the Supreme Court had overstepped its mandate, and acted as both legislature and executive. The Court had used a legal tool called continuing mandamus to keep the matter open. As a result, under the aegis of Godavarman, hundreds of orders have been issued over the years in environmental matters. Some observers have noted that getting around the expansive understanding of “forest” in Godavarman was one of the objectives of the Forest Amendment Act, 2023.

Exemptions galore

The government’s intention to nullify Godavarman with the amendment act is most clearly seen in the insertion of the new Section 1A(1). The wide protection provided to vast tracts of forest land under the principal act is now restricted only to declared and notified forest under the 1927 Act, and land which has been recorded as forest by the government on and after 25 October 1980. 

In order to get around Godavarman, the amended act also relies on over-broad exemptions. It exempts several categories of forest land (including Recorded Forest Areas) from statutory protection. In Section 1A(2)(a), for instance, the following kind of land is exempted: “such forest land situated alongside a rail line or a public road maintained by the Government, which provides access to a habitation, or to a rail, and roadside amenity up to a maximum size of 0.10 hectare in each case.” 

The ex-civil servants’ petition points out that such an exemption would cause fragmentation in forest land. What complicates matters is that no definitions have been provided for ‘roadside amenity’, ‘public utility’, and ‘habitation’. There is also no explanation on whether the whole area alongside an entire road or rail line is exempt or only the area around the feeder roads. 

In the new Section 1A(2)(b), there’s a more absurd exemption. The provisions exempt all tree plantations and afforested areas from protection. This is baffling because one of the objects of the Forest Conservation Act is to promote afforestation. The environment ministry’s reasoning for the introduction of these provisions is that people were wary of growing trees and establishing plantations for fear that it would attract the provisions of the Act. The petitioners, on their part, contend that the ministry’s claim is not data-backed and is based on suppositions and anecdotes. 

One of the more concerning exemptions is the blanket one relating to land that is situated within 100kms of the Line of Control and international borders and which is proposed to be used for the construction of a “strategic linear project of national importance and concerning national security.” 

The petitioners contend that large swathes of territories in the northeastern states fall under this exemption: as much as 90 percent of Nagaland, large parts of Assam, and the whole of Meghalaya, Tripura and Mizoram. This could result in the loss of some of the rarest lowland dipterocarp forests in the world. These forests are also home to critically endangered endemic species like the Hoolock Gibbon, the Sela Macaque and the bird Bugun Liocichla. 

These concerns are the tip of the iceberg. There are several other provisions in the amended legislation that make it easier for the government to take over, and then hand over land to contractors. 

• Section 1A(2)(c)(ii): Forest land used for security-related infrastructure excluded from the Act’s purview
• Section 1A(3): Statutory reliance on compensatory afforestation which has a very poor track record in India 
• Section 1A(2)(c)(iii): Unrestricted exemption for defence and public utility projects in Left Wing Extremism-affected areas 
• Section 2(2): Arbitrarily permitting activities such as survey and exploration in forest land
• Lack of clear definitions for crucial terms
• Excessive delegation of powers to Central Government

According to the environment ministry, the total forest cover in the country, as of 2021, was 21.71 percent of the total geographical area, less than the 33 percent coverage prescribed. But even that policy commitment seems to be mere lip service. The amendments that have been pushed through lay the ground for diverting more forest land for non-forest activities. They endanger not only forests and wildlife, but also the well-being and livelihoods of forest-dwelling communities. 

Zeb Hasan is a lawyer currently practising in Delhi.